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The NSA and Fourth Amendment: Reliving 1984

The National Security Agency (NSA) used a top secret court order to collect telephone records on millions of Americans without their consent. The order demanded Verizon to provide records on an "ongoing, daily basis" to the federal government on calls both within the United States and between the United States and other countries. The secretive Foreign Intelligence Surveillance Court (FISA) granted permission to the Federal Bureau of Investigation (FBI) on April 25 for a three month period of spying on the phone records of American people. The court expressly barred Verizon from disclosing this massive intrusion on privacy to the public. This court has allowed the federal government to spy on phone calls and track the American people without their consent or knowledge. Congress needs to intervene and restore the basic protections afforded to Americans by the U.S. Constitution.

This is just another step in the NSA plan to collect and track data on the American people. The NSA has quickly become the largest, most covert, and with the help of technology and court orders, the most intrusive intelligence agency devised by man. According to Wired, the NSA has established the country’s largest spy center in the mountains of Utah. Unless Congress acts, the NSA’s long train of abuses and usurpations will be permitted to take America down the road of tyranny. The power of the NSA should be constrained by the Constitution. The Fourth Amendment states “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause…” When the British occupied the colonies, they seized persons and their property without justified cause. Based on these early experiences, the Founders recognized the importance of allowing people to be safe from unwarranted search and seizure.

The NSA’s ability to catalog data on US citizens does not give them the right to do so. William Binney, a former senior NSA crypto-mathematician responsible for automating the NSA’s worldwide eavesdropping network, quit in late 2001. He stated, “They violated the Constitution setting it up…but they didn’t care. They were going to do it anyway, and they were going to crucify anyone who stood in the way.” The world of digital technology does not give license to infringe upon free speech and neither should it permit federal intrusion into people's private information. The cyber world is not exempt from the Fourth Amendment and the U.S. Constitution.

A few senators seeking to obey their oath to defend the Constitution have introduced legislation to ensure Americans are protected even in the digital world. Senator’s Patrick Leahy (D-Vt.) and Mike Lee (R-Utah) have a bipartisan proposal to deal with the intrusions of the NSA and other agencies. The Electronic Communications Privacy Act Amendments Act of 2013 makes it clear that a search warrant requirement is required in order for the government to obtain emails and other electronic communications of American citizen. Another bill, by Sen. Rand Paul (R-Ky.), is even broader. “The Fourth Amendment Preservation and Protection Act of 2013” would extend Fourth Amendment guarantees to the cyber world and electronic communications. Rand Paul’s bill would protect all records held by third parties from any agency of government without a warrant issued by a judge. Congress must curb the power of NSA by following the Constitution before the nightmare of 1984 becomes a part of our world.

With snakes like "Baghdad Jim" McDermott in Congress, who gets his jollies by illegally listening into Newt's private cell phone conversations, there's no hope of fostering outrage among those creeps. Sure, NSA might be able to stop a couple of (now they'd have to be) dumb terrorists by retrieving everyone's phone records--just like a department store might be able to stop a few shoplifters by putting cameras in the restrooms.

Where this gets exceptionally dangerous--even more so than violating an individual's Fourth Amendment rights, is the ability to use the information to establish degrees of separation between any two given individuals. Do you know everyone you know knows? If there are two or three degrees of separation between you and a know terrorist, whether you know it or not, prepare to be boarded by the DHS, FBI, BATF, and a host of other public servants.

The data can also be used when the time comes to confiscate guns (called any ammunition or sporting goods stores lately?) or gold.

If there's any provider out there who refused to cooperate with the NSA (like Qwest did a couple of years back) in this gross attack on our rights, now's an excellent time to get great market share by advertising that fact. The first word in FISA is "Foreign," and any order they have which affects purely domestic matters is illegal.

Google's Eric Schmidt Invests in Obama's and Democratic Party . The new consulting firm, Civis Analytics will provide Democrats data mining information in order to win the 2014 elections. I wonder if Civis Analytics will have access to the NSA databases.

The Advisory Committee on Criminal Rules for the Judicial Conference of the United States has proposed an amendment to Rule 41. While these rules are typically procedural changes, the proposed changes in Rule 41 are actually a substantive policy change that provides federal law enforcement sweeping new powers to remotely search and seize electronic storage media.

Last year, Yahoo received a court order from the Justice Department (who obtained it from the Foreign Intelligence Surveillance Court) obligating Yahoo to scan all of its users’ emails for specific information, which has not been disclosed. We do know some of that search involved finding traces of malware. By modifying a standard spam filter, Yahoo was able to search through all of its users’ emails, not just individual accounts, in real time. Yahoo claims to have since discontinued this practice.

On Wednesday, House Oversight Committee Chairman Jason Chaffetz (R-Utah) singled out StingRay scanners, stating that the committee is set to investigate these devices and their use in government surveillance. While mired in technical language, this is an issue of importance to all Americans.

In the majority opinion for the unanimous Court in Riley v. California (2014), Chief Justice John Roberts wrote, “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” This “go get a warrant” sentiment is echoed again and again in more recent cases involving cell phone privacy. By taking a closer look at how exactly a search warrant works, it becomes increasingly clear that this protection is needed now more than ever as we enter the digital age.

A federal judge in New York ruled for the first time on Tuesday that the use of a surveillance device to capture cell phone location information constitutes a warrantless search. In the case, Lambis v. United States, government officials used a stingray device to track a drug suspect. Stingrays, also known as “cell site simulators,” force cell phones in the area to transmit signals that pinpoint the user’s location through cell site location information, or CSLI data.

Following the vote in the House of Representatives on an amendment sponsored by Reps. Thomas Massie (R-Ky.) and Zoe Lofgren (D-Calif.) to end unlawful surveillance of Americans through Section 702 of the Foreign Intelligence Surveillance Act, FreedomWorks Chief Economist and Vice President of Research Wayne Brough commented:

Back in the 1980s, everyone was walking around with their perms and mullets, Bruce Springsteen and Michael Jackson were playing sold out concerts, and people still couldn’t believe that Darth Vader was Luke’s father (spoilers). Clearly, things have changed a lot since then, yet, curiously, privacy standards regarding emails have not. While email certainly wasn’t a dominant form of communication back in the 80’s, the computer revolution that our society has undergone makes online data and information more valuable than ever. It’s time for our privacy standards, then, to reflect the new and ever-more-digitized world we live in.

Recently, FCC Chairman Tom Wheeler proposed a set of new privacy regulations addressing the transfer and use of consumer information. Just as he had done previously with the set-top box proposal, Wheeler portrayed the new regulations as unilaterally beneficial to consumers. Of course, no regulatory case at the FCC is ever so simple, and there is much more at play here, including the potential for cronyism and regulatory power-grabs.